IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent and Kristina Reusser,

Case No. 2:12-cv-00087

Plaintiffs, 

v. Judge Graham

Saxon Mortgage Services, Inc., et al., Magistrate Judge Abel

Defendants.

ORDER

This action was removed from state court on the basis of diversity jurisdiction. Plaintiffs have

moved to remand, arguing that the parties are not diverse and that the amount in controversy does not

exceed $75,000. For the reasons stated below, the motion to remand is denied.

I. Background

A. Factual Allegations

Plaintiffs in this action are Vincent and Kristina Reusser of Monroe County, Ohio. Defendant

Saxon Mortgage Services, Inc. is a Texas corporation licensed to do business in Ohio. Defendant Bank

of America, N.A. (“BOA”), is a North Carolina corporation licensed to do business in Ohio. Defendant

Judy Gramlich is the Treasurer of Monroe County, Ohio.

In June 1999 Vincent Reusser obtained a home mortgage from Standard Federal Bank with a

principal balance of $106,000.00. Standard Federal Bank was renamed LaSalle Bank Midwest in 2005

and was acquired by BOA in late 2007. Saxon is the mortgage servicer for BOA.

Between June 2006 and July 2011, the mortgage was modified in various ways, including three

Loan Modification Agreements and a $35,000 “Misc. Posting”. These adjustments to the mortgage

balance, along with the attendant communications between plaintiffs and BOA and Saxon, are the

subject of this action.

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Plaintiffs seek a mixture of legal and equitable relief. Their first claim is for violations of the

Ohio Consumer Sales Practices Act, O.R.C. § 1345.02. Plaintiffs allege that BOA and Saxon offered

the various Loan Modification Agreements knowing that plaintiffs could not pay the increased

obligations. Plaintiffs allege that through misrepresentations, the defendants convinced the plaintiffs

to agree to the various modifications that resulted in unconscionable fees and charges.

In their second claim for relief, plaintiffs assert that defendants violated the Ohio Mortgage

Broker Act, O.R.C. § 1327.07, by the same actions alleged in the first claim. The plaintiffs also assert

a claim for common law fraud, alleging that the defendants made material misrepresentations which

induced plaintiffs to agree to the various Loan Modification Agreements. For their fourth claim for

intentional infliction of emotional distress, plaintiffs allege that defendants’ predatory and deceptive

lending practices caused the plaintiffs to suffer mental anguish and emotional distress over a period of

several years. The plaintiffs request equitable relief in their fifth claim, requesting a stay of all collection

and foreclosure activities associated with their mortgage. Plaintiffs’ sixth claim seeks an order requiring

defendants to remedy any injury to plaintiffs’ credit score proximately caused by defendants’ lending

practices.

B. Procedural History

On December 29, 2011, the plaintiffs filed this action in the Monroe County Court of

Common Pleas. On January 27, 2012, BOA filed a Notice of Removal with this court based on

diversity jurisdiction, 28 U.S.C. §§ 1441(a) and (b). Saxon consented to the removal.

After BOA and Saxon filed motions to dismiss, plaintiffs moved to remand to state court. The

issues before the court are twofold. First, the parties dispute whether defendant Gramlich is a proper

party to this action. If Gramlich is a proper party, the case lacks complete diversity and must be

remanded. Second, the parties dispute whether the amount in controversy requirement of 28 U.S.C.

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§ 1332(a) is satisfied. If the amount in controversy does not exceed $75,000, the case must be

remanded. Thus, if there is either a lack of complete diversity or an insufficient amount-in-controversy,

then the court lacks original jurisdiction under § 1332(a) and the case must be remanded to the Monroe

County Court of Common Pleas.

II. Discussion

A. Legal Standard

Section 1441(a) describes what types of actions are removable and prescribes the procedure for

doing so. In pertinent part, the removal statute provides that “any civil action brought in a State court

of which the district courts of the United States have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of the United States for the district and division

embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Federal courts, have original

jurisdiction “of all civil actions where the amount in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). The

facts regarding these dual requirements of jurisdiction are cemented at the time of removal as they

pertain to subject matter jurisdiction. Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 210 (6th Cir.

2004). The removing party bears the burden of demonstrating that the parties are completely diverse

and that the amount in controversy requirement is satisfied. Everett v. Verizon Wireless, Inc., 460 F.3d

818, 829 (6th Cir. 2006). 

B. Fraudulent Joinder

In a case involving non-diverse parties, a party may defeat a motion to remand, and stay in

federal court on diversity grounds, if it can show that the non-diverse party was fraudulently joined.

Saginaw Hous. Comm’n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009). A plaintiff’s motive in

joining the non-diverse party is immaterial to the determination regarding fraudulent joinder. JeromeCase: 2:12-cv-00087-JLG-MRA Doc #: 22 Filed: 08/03/12 Page: 3 of 8 PAGEID #: <pageID>
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Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). Rather, fraudulent joinder

occurs when “a plaintiff could not have established a cause of action against non-diverse defendants

under state law.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999). The inquiry is thus

whether the removing party has demonstrated that the non-diverse party is one “against whom there

is no colorable cause of action.” Saginaw, 576 F.3d at 624. Any ambiguities or disputed issues should

be resolved in favor of the nonremoving party. Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949

(6th Cir. 1994).

Here, the removing defendants have demonstrated that there is no colorable basis for recovery

against Ms. Gramlich, the Treasurer of Monroe County. None of the complaint’s allegations of

wrongdoing mention Ms. Gramlich. The only assertion in the complaint regarding Ms. Gramlich is that

she “may claim an interest in this lawsuit by means of a lien for unpaid real estate taxes.” Far from

being an allegation of actionable conduct against Ms. Gramlich, it seems the plaintiffs merely anticipate

that Ms. Gramlich could be an interested party should BOA someday bring a foreclosure action. Since

the complaint provides no legal basis for recovery against Ms. Gramlich, the removing parties have

satisfied their burden of demonstrating that Ms. Gramlich was fraudulently joined. The court

accordingly finds that the parties are completely diverse for purposes of diversity jurisdiction.

C. Amount in Controversy

The second requirement of diversity jurisdiction is that the amount in controversy must be

greater than $75,000. “[W]here plaintiffs seek ‘to recover some unspecified amount that is not selfevidently greater or less than the federal amount-in-controversy requirement,’ the defendant satisfies

its burden when it proves that the amount in controversy ‘more likely than not’ exceeds $75,000.”

Everett, 460 F.3d at 822 (internal quotation marks omitted). When a plaintiff seeks some type of

equitable relief, the dollar value, for purposes of determining the amount in controversy, equals “the

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value of the object of the litigation.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347

(1977); see also Cleveland Hous. Renewal Project v. Deutsche Bank Trust Co., 621 F.3d 554, 560 (6th

Cir. 2010). The object of the litigation may be determined according to “the value of the right to be

protected or the extent of the injury to be prevented.” Goldsmith v. Sutherland, 426 F.2d 1395, 1398

(6th Cir. 1970); see also Everett, 460 F.3d at 829 (6th Cir. 2006).

Claims by multiple plaintiffs may be aggregated to reach the jurisdictional amount only where

they “unite to enforce a single title or right in which they have a common and undivided interest.”

Snyder v. Harris, 394 U.S. 332, 335 (1969); see also Everett, 460 F.3d at 823. Here, plaintiffs appear to

be enforcing a common and undivided interest in the mortgage and their shared marital property. The

complaint makes no indication they are seeking separate relief.

Claims against multiple defendants may be aggregated to reach the amount in controversy

requirement only when those claims are against defendants jointly. Charvat v. NMP, LLC, 656 F.3d

440, 446 (6th Cir. 2011). The complaint refers to BOA and Saxon in the plural as “defendants” in every

claim for relief and in paragraph 43, which alleges that “Defendants are liable for the unlawful acts of

the other under the doctrines of agency and/or joint venture.” While the complaint does not expressly

state that the defendants should be held jointly liable, it appears from the complaint that the plaintiffs

are seeking relief from BOA and Saxon jointly. For the present purpose of determining the amount in

controversy, the court will not attempt to parse the liability of the defendants when the plaintiffs have

not done so. Because the plaintiffs assert a common undivided right against defendantswho they allege

are jointly liable, the plaintiffs’ claims may be aggregated in determining the amount in controversy.

1. Object of the Litigation - Mortgage Balance Discrepancy 

The plaintiffs allege that as a result of defendants’ wrongful modifications and fees, their

principal mortgage balance now exceeds $140,000. This balance is the alleged aggregate result of the

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original mortgage, three Loan Modification Agreements, and other miscellaneousfees. Plaintiffs claim

that the mortgage balance should be $85,666.71 as of the date of the filing of the complaint, based on

an amortization table, which is attached to the complaint, for the original mortgage. While the plaintiffs

do not state a specific dollar amount for which they seek recovery, the complaint (in the counts for

violations of the OCSPA and for fraud) seeks declaratory relief and actual damages relating to the

alleged series of wrongful modifications. In effect, the complaint demands that either the modifications

be rescinded or that plaintiffs be awarded their actual damages caused by the modifications. Were the

court to grant either form of relief, it would result in a reduction of the mortgage balance or in a

recovery of approximately $55,000.

2. Non-Economic Damages 

The plaintiffs also seek up to $5,000 in non-economic damages pursuant to the OCSPA, O.R.C.

§ 1345.09(A). Non-economic damages are statutorily available when paired with actual economic

damages, but may not be awarded in addition to rescission. Id.

3. Punitive Damages 

The plaintiffs seek punitive damages in connection with their Ohio Mortgage Broker Act and

fraud claims. Punitive damages may be aggregated with other damages to satisfy the amount-incontroversy requirement. Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 462 (6th Cir. 2010). In fact,

“‘punitive damages must be considered . . . unless it is apparent to a legal certainty that such cannot be

recovered.’” Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 572 (6th Cir. 2001) (quoting

Holley Equip. Corp. v. Credit Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987)).

It is not apparent to a legal certainty that plaintiffs cannot recover punitive damages. If plaintiffs

prevail on either their claim under the Ohio Mortgage BrokerAct or their fraud claim, punitive damages

will be available. See O.R.C. § 1322.11(A)(3) (Mortgage Broker Act); Touhey v. Ed’s Tree & Turf,

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L.L.C., 194 Ohio App.3d 800, 806, 958 N.E.2d 212, 216 (Ohio Ct. App. 2011) (fraud). Indeed, courts

have upheld punitive damage for violations of the Mortgage Broker Act of up to seven times the

amount of compensatory damages. See Roark v. Rydell, 174 Ohio App. 3d 186, 881 N.E.2d 333 (Ohio

Ct. App. 2007); Myer v. Preferred Credit, Inc., 117 Ohio Misc. 2d 8, 766 N.E.2d 612 (Ohio Ct. Com.

Pl. 2001). Here plaintiffs allege that defendants’ violations of the Act caused their mortgage balance to

be wrongfully increased by at least $55,000. Recovery of this amount, when combined with even a

comparatively small punitive damages award, could easily exceed $75,000. 

4. Intentional Infliction of Emotional Distress

The complaint also asserts a claim for intentional infliction of emotional distress. For this claim

alone the complaint requests a compensatory damages award in excess of $25,000. Further, the claim

is one for which punitive damages are statutorily available for up to two times the amount of

compensatory damages. O.R.C. § 2315.21(D)(2)(a).

5. Attorneys’ Fees

While attorneys’ fees are generally not considered when determining the amount in controversy,

they may be included in the damage calculation if they are provided for by statute. See Williamson v.

Aetna Life Ins. Co., 481 F.3d 369, 376 (6th Cir. 2007). The complaint alleges a violation of the OCSPA,

which expressly allows for an award of attorneys’ fees to prevailing plaintiffs. See O.R.C. § 1345.09(F).

6. Summary

The court finds that defendants have satisfied their burden of demonstrating that it is more likely

than not that the amount in controversy exceeds $75,000. The complaint alleges that defendants’

wrongful actions have resulted in the mortgage balance being at least $55,000 higher than it should be.

Plaintiffs have further sought $5,000 in statutory non-economic damages, $25,000 in compensatory

damages, punitive damages, and attorneys’ fees. When aggregated, these claims total more than $75,000.

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The court need not decide exactly how much a recovery of punitive damages or attorneys’ fees would

be in this case; it is sufficient to say that if recovered, those amounts – when combined with the other

damages being sought be plaintiffs – would likely exceed $75,000.

III. Conclusion

Accordingly, plaintiffs’ motion to remand (Doc. 7) is DENIED.

S/ James L. Graham 

JAMES L. GRAHAM

United States District Judge

DATE: August 3, 2012

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